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CHARLES F. BINDER v. COMMONWEALTH PENNSYLVANIA (08/08/86)

decided: August 8, 1986.

CHARLES F. BINDER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Commonwealth of Pennsylvania v. Charles F. Binder, No. 84-2756.

COUNSEL

David A. Silverstein, with him, Robert B. Hochberg, Silverstein & Kaufman, for appellant.

Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges MacPhail and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 99 Pa. Commw. Page 548]

This is an appeal by Charles F. Binder (Licensee) from an order of the Court of Common Pleas of Delaware County sustaining an action by the Department of

[ 99 Pa. Commw. Page 549]

Transportation (DOT) wherein DOT suspended for twelve months Licensee's operating privileges for failure to submit to a breathalyzer examination pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. ยง 1547(b) (Code).*fn1

The trial court found that Licensee was lawfully arrested in Philadelphia and charged with driving while under the influence of alcohol on January 20, 1984. He was requested to submit to a breathalyzer examination and told that if he refused his license would be suspended for twelve months. Licensee then asked for permission to call his attorney and was permitted to make a call. He was then again asked to submit to a breathalyzer test and refused. The trial court further found:

10. The officer testified that [Licensee] did not request a blood test or to have his private physician perform any test.

11. The [Licensee] testified that after he read the form provided by the police department he decided that he preferred a blood test instead of a breath test and that he requested that a blood test be given.

12. That [Licensee] testified that he informed the officer that a hospital was directly across the street from the ...


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